Citation Nr: 22015950 Decision Date: 03/20/22 Archive Date: 03/20/22 DOCKET NO. 04-35 051A DATE: March 20, 2022 ORDER An initial compensable disability rating for non-Hodgkin's lymphoma is denied. FINDING OF FACT The Veteran's non-Hodgkin's lymphoma has been in remission since late 2001 or early 2002 and is not characterized by active disease or treatment. CONCLUSION OF LAW The criteria for a compensable disability rating for non-Hodgkin's lymphoma have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.117, Diagnostic Code 7715. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1983 to September 2003. In September 2015, the Veteran presented testimony at a Board hearing before a Veterans Law Judge who is no longer employed at the Board. A transcript of the hearing is associated with the claims file. The Veteran was offered a second hearing to be conducted by the Veterans Law Judge who would decide her claims. She did not respond. The Board remanded this issue for additional development in January 2013, May 2020 and June 2021. Entitlement to an initial compensable disability rating for non-Hodgkin's lymphoma. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. In an October 2003 rating decision, the Veteran was granted service connection for non-Hodgkin's lymphoma at noncompensable, effective October 1, 2003. The Veteran reported a diagnosis of stage 1A primary mediastinal non-Hodgkin's lymphoma. She stated that she underwent surgical removal of the tumor and received 6 rounds of chemo and 10 sessions of radiation. The Veteran indicated that there has been no recurrence of her tumor since her treatment and she follows-up regularly with her PCP for monitoring. See January 2019 Hematologic Disability Benefits Questionnaire. During the course of this appeal, VA revised 38C.F.R. §4.117. See 83 Fed. Reg. 54,250(Oct. 29, 2018). The effective date of this revision, which included changes to Diagnostic Code 7715, is December 9, 2018. Prior to December 9, 2018, Diagnostic Code 7715, rated non-Hodgkin's lymphoma with active disease or during a treatment phase as 100 percent disabling. A note to this Diagnostic Code at that time also stated that the 100 percent rating shall continue beyond the cessation of any surgical, radiation, antineoplastic chemotherapy, or other therapeutic procedures. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Since December 9, 2018, Diagnostic Code 7715 provides that NHL is rated at 100 percent with active disease, during treatment phase, or with indolent and non-contiguous phase of low-grade non-Hodgkin's lymphoma. A note to the Diagnostic Code at this time also mandates that the 100 percent shall continue beyond the cessation of any surgical therapy, radiation therapy, antineoplastic chemotherapy, or other therapeutic procedures. Two years after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Ultimately, the Board remanded the claim in June 2021, for additional development, to include an addendum opinion to address discrepancies in the October 2020 VA examination. The September 2021 examiner endorsed that there is no evidence of indolent or active disease. The examiner remarked that indolent disease is active, smoldering and slow-growing and there is no evidence of such. The examiner acknowledged that the discrepancy that appears to arise in the forms and questions in the June 2021 remand. Specifically, the October 2020 examiner indicated that the Veteran's non-Hodgkin's lymphoma was both in an indolent and non-contiguous phase and in remission. However, the examiner opined that it is more likely than not that the Veteran has been in remission since treatment around 2001/2002. The examiner reasoned that there is no evidence of active disease and has not been since the completion of treatment. The medical evidence throughout the appeal period indicates that the Veteran's non-Hodgkin's lymphoma has been in remission, not active and the Veteran has not been on continuous medications related to his disability. At the September 2015 Board hearing, the Veteran testified that she was officially in remission and described residuals of his non-Hodgkin's lymphoma as having to get tested every year. The Veteran has received routine examinations and check-ups to monitor his status; however, there is no evidence that he received a therapeutic agent, therapy, or procedure used to treat his disability during his examination or check-ups. In all, since the Veteran's chemotherapy treatment ended toward the end of 2001 or beginning 2002, she has not experienced an "active disease, during treatment phase, or with indolent and non-contiguous phase of low grade non-Hodgkins lymphoma." 38 C.F.R. § 4.117, Diagnostic Code 7715. Therefore, an initial disability rating of 100 percent is not warranted. Finally, the Board notes that when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part of the claim for benefits for the underlying disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A claim for TDIU has not been raised by the Veteran or the record in this instance as the Veteran has not alleged, and the record does not suggest, that he is unable to obtain and maintain employment due to his non-Hodgkin's lymphoma. N. RIPPEL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jordan, Jacquelynn The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.